NetworkExpert Witness

PRACTICING AS AN EXPERT BUILDING CONSULTANT & WITNESS

INTRODUCTION

Expert Consultants, or Claims Consultants, have become an indispensable part of the American judicial system. Experts investigate, review, and evaluate technical issues and explain their findings and opinions to the attorneys who hire them and possibly to a jury and/or judge so they may reach a verdict. A person is defined as an "expert witness" when a court of law or other tribunal accepts and confirms such recognition and allows that person to render an opinion as evidence.

Experts are generally retained by opposing parties in a dispute to investigate and form an opinion regarding the issues at hand. Rarely do the experts for both sides completely agree, if at all. The primary rule of being an expert consultant is: your opinion regarding a specific issue should never differ according to who has hired you; remember; everything you say becomes record and may be used in the future. It is also advised to work for both plaintiff and defendant (and hopefully as third party independent retained by the court) on a relatively equal basis. The bottom line is to perform your investigation to the fullest allowed by budget, evaluating all avenues so you can come to the most honest and objective conclusion, even if your client may not be thrilled with your opinion.

Always be aware of your limitations! Don't take a case if it is totally out of your expertise. If you are comfortable with the matter as a whole, know when to hire assistance when certain aspects are beyond your experience. Experts are permitted to rely on the opinions and findings of other professionals they hire to assist them.

Be aware of the opinions of other respected experts in your field and established codes or standards when forming your opinion. If you disagree with the opinion of most other experts, or with established standards and codes, be prepared to fully explain (and back up your opinion to all parties involved) why your opinion should prevail.

DEVELOPING YOUR CURRICULUM VITAE

Your curriculum vitae (or resume) is a history of your background, experience, and training. Your C.V. will change as you become more experienced and gain further knowledge. The worst mistake you can make is to exaggerate or be untruthful in your resume. Expect to be grilled on your qualifications at depositions and trial. The opposing attorney is looking for evidence to disqualify you.

Build your C.V. by listing your background (such as engineer, contractor, inspector, etc.), your education, including special studies, such as seminars and conferences, then your experience, such as prior cases or significant assignments. Being a leader in your field, such as holding elected office in a professional association, becoming active in committees, and writing technical papers is a great way to help establish yourself as an expert.

GETTING WORK AS AN EXPERT

There is no easy way to advertise as an expert building consultant. Of course the yellow pages has a section entitled "building consultants". However, I do not see many firms buying space there. A web site is a must. Some avenues of obtaining business are: schedule or sponsor a lunch meeting for attorneys who practice in the construction litigation field and discuss a timely topic, distributing your firm package at the end of the meeting. Another way is to prepare a professional mailer to attorneys, hoping they will keep your information on file. The best advertisement, of course, is word of mouth. You will need to become known as an authority in your field. Getting active in organizations relative to the building industry is the best method. The rest will fall into place if you are good at what you do.

MEETING WITH THE CLIENT/ATTORNEY

Once retained it's a good idea to have an initial meeting with your client and/or attorney to discuss the issues of the case and possibly plan some strategy. Dress respectfully when attending meetings; a tie and sport jacket are appropriate. Be concerned about the outcome of the matter, take notes, and inform the client or attorney how you can help them. Now is the time to bow out and recommend another expert if the elements of the case are beyond your comfort level.

GATHERING EVIDENCE

Review the opposing side's documents, if available. Look for inconsistencies, duplicate allegations, and inaccurate or misconstrued quoting of manufacturer's specifications or codes. Oftentimes experts use the wrong year building code or standard when writing reports. Ask the attorney for the opposing expert's deposition transcript and review it; you will gain an insight as to his/her opinion and strategy and may be able to discredit it. When reviewing plans, be sure you have the approved set or as-built set; preliminary or conceptual drawings may not be accurate.

Be prepared and be organized! Don't attend a site inspection of an attic wearing a suit and wing-tip shoes. Don't arrive at a site to perform a roof inspection without a ladder. You are being paid a lot of money to be an expert consultant and are expected to know what you are doing as well as be prepared to perform your inspection.

A good camera and lots of film (it's embarrassing to run out!) is a must. Most now use digital cameras, however, a few still use SLRs as sometimes juries mistrust electronic due to “Photoshop enhancements". Some prefer a camera which imprints numbers in sequential order on each photo itself; it is not uncommon to take as many as 5000 photos during investigation of a large project. These "data-back" cameras make keeping track of photos a breeze. You only need to identify the photo number (and not duplicate photo numbers during return trips) in your notes to keep a record of each and every one. Sometimes an erasable marker board used in the photo can be helpful to identify the condition being photographed, however, this can be time-consuming. Be sure to use a tape measure in photos where necessary to show the perspective of a defect, such as a slab or wall crack. Take adequate notes and photos at the site inspection; it may be the only chance you have to see the defects (or lack of).

Do not discuss your opinions at the site with other opposing experts (even if you think their conclusion or comments are erroneous); they can testify as to what you said during their deposition or the trial. If you were mistaken, or have changed your opinion, this testimony may affect your credibility. Be sure to discuss your findings and conclusions with the attorney first. A favorite answer when another expert ask "so, what do you think of this?" is "I don't know, what do you think?"

PREPARING FOR DEPOSITION

A deposition is somewhat informal, however, your testimony is taken under oath by the opposing attorney and is transcribed by a certified court reporter. Be careful about what you say; your testimony will be scrutinized by the opposing attorneys and experts. Deposition testimony is typically considered your final opinion for trial; any additional work or opinion changes may not be admitted at trial. If you do not have conclusions regarding the case the opposing attorney will usually reserve the right to depose you again.

Depositions can go on for days and be exhausting. Be physically and mentally prepared for the deposition; avoid alcohol the night before and get a good night's sleep. Review your documents and be familiar with their whereabouts. A three-ring binder with tabs distinguishing different aspects of the case is handy. You will appear un-prepared if you have to shuffle for ten minutes through a box full of papers and photos to find an important item. Be sure your retaining attorney has reviewed your files prior to the deposition and removed any privileged documents; the opposing attorney will typically study and copy your entire file, including photos.

Always count to three before answering any question, this allows your attorney time to object if necessary, although you must still answer the question if you understand it. Answer deposition questions with a yes or no whenever possible. Do not volunteer information; you are not there to convince the attorney of your opinion, save that for the jury. Don't answer poor, compound, or vague questions; ask that they be re-worded. Some questions will be outright dumb, such as "have you ever made a mistake?" The correct answer, of course, is yes. However adding "but I always made every attempt to correct it" limits the damage. After some experience you will become accustomed to these tactics and be able to counteract them. You must answer any question you understand, even if it damages your case. Be truthful at all times, and do not alter your opinions to favor your client. Remember, many attorneys and experts keep files of previous depositions. Differing opinions from other cases may damage your credibility unless you have a valid reason for the change.

THE TRIAL

Appearing at trial, whether in front of a jury or judge or both, is the ultimate test of your expert skills. You testify to the judge or jury, it is them you must convince, not the questioning attorney. Dress appropriately, a conservative dark suit and red or yellow tie is best. Show respect to everyone. The judge is "your honor", and the attorneys are Mr. or Ms. _____, no matter how hard they may be trying to discredit you. Remain dispassionate and cordial at all times. Your job is to appear unemotional, be objective regarding the matter at hand and state the facts and your opinions when asked.

There are two types of courtroom examination; direct and cross. Your direct examination will be by the attorney you are working for. Cross examination is interrogation by the opposing counsel. Do not engage in a battle of wits with opposing counsel. Answer only questions asked and don't volunteer information; it may hurt your case or make it appear that you feel the need to qualify every answer because you are unsure. Count to three after every cross examination question so your attorney has a chance to object and wait for the judge to rule on the objection before answering.

OTHER AREAS OF WORK

As you become known as an expert building consultant other, non-litigation, work may be pursued. Many times building owners, contractors or other professionals have disputes and a knowledgeable consultant is needed to mediate between parties. Insurance companies may ask your opinion regarding a claim. Building owners may need assistance in investigating a problem and designing a solution. Don't be afraid to take on an assignment if you are unfamiliar with all the aspects; you can act as a coordinator of sub-consultants to resolve the problem. Remember, the key to success is professionalism and a positive attitude.